Final appeal board arguments vented in Victoria hearing

Gulf Islands Driftwood, Wednesday, May 26, 2004

By Jennifer McFee

Closing arguments for the appeal of a waste
management permit issued to Sablefin Hatcheries Ltd. took
place before the Environmental Appeal Board last week in Victoria.
Lawyers from three groups presented final reasons why they
believe the board should reverse an 18-month approval granted
by the Ministry of Water, Land and Air Protection (MWLAP)
to the company to inject hatchery waste into an underground
seawater layer at Walker Hook.

On Tuesday, May 18, the three-member panel heard arguments
from lawyers for the Canadian Sablefish Association (CSA),
Salt Spring Island Residents for Responsible Land Use (SSIRRLU)
and Penelakut First Nation Elders (see separate story), as
well as the response from MWLAP. Over 70 concerned community
members ventured to Victoria to attend the first day of the
hearing. The meeting carried over to Wednesday, when board
chair Alan Andison and members Bob Gerath and Robert Cameron
heard final words of third party Sablefin Hatcheries Ltd.,
followed by responses from the three appellants.

Arguments of the first two appellants dealt mainly with
environmental issues. Lawyer Wally Braul presented the CSA’s
concern that microbial waste might travel to the marine environment.
He said enough research has not been done on the effects of
microbes on fish and fish habitat, resulting in “a good deal
of scientific uncertainty.” “Tackling the difficult issues
is imperative. Consideration of the presence of potentially
harmful substances should have been a priority.” According
to Braul, limited studies on microbial effects were done by
the hatchery’s own hydrogeologist Dennis Lowen instead of
by professionals qualified to study the wastes. Braul said
Lowen reported on areas outside his realm of expertise and
Sablefin Hatcheries took a “less than rigourous approach”
to the guidelines set out by the ministry.

According to the CSA, the ministry misconstrued agency approvals.
Braul said the project received conditional approval based
on the assumption that no waste water would enter the environment.
Yet Lowen’s report stated most waste discharge would be eliminated,
but said the project could produce some potential contaminants,
like peroxide. This discharge could go through a number of
routes to get to the marine environment.

Braul said there was insufficient analysis of this microbial
waste, of rate and direction of water flow and of tidal effects.
He said most evidence was anecdotal rather than based on facts.
“We have at best very superficial information. Transparent
analysis was not used in this case. Uncertainty of information
makes it very difficult to develop a responsible approach
to the risk. There is a significant possibility for damage,”
said Braul.

Eamon Murphy spoke next on behalf of SSIRRLU. He said the
decision maker for waste management approval failed to take
into account recreational uses of Walker Hook, as well as
the possibility that the area could be acquired for parkland.

He also expressed concerns about the effects of hatchery
waste on three sensitive ecosystems at Walker Hook, which
are home to fish and threatened bird species. Murphy told
the board the decision was based on “inadequate, insufficient
and incomplete information” that lacked baseline studies and
environmental impact assessments. He said guidelines about
water discharge were not followed. Murphy further questioned
whether the hatchery’s sand filter would remove marine bacteria,
viruses or microbes.

Murphy said that eelgrass, important for spawning and feeding,
could be adversely affected. “Once eelgrass begins to die,
it has a very slow recovery rate. Once eelgrass is affected,
the food chain becomes affected. We just don’t know where
the effluent is going to come out.”

According to the residents’ group, Lowen relied on “four
years out-of-date water analysis guidelines that were not
specific to eelgrass or fish species.” Murphy told the board
the ministry’s decision maker “exceeded his jurisdiction”
because he approved a project that puts effluent into fish
habitat. “The decision maker should have involved the Department
of Fisheries and Oceans (DFO) in waste management concerns.
He effectively stepped into the shoes of the DFO.” He also
said the decision was fettered, as correspondence with the
ministry gave “the distinct impression” the project would
be approved before the application was submitted.

On the other side of the case, Dennis Doyle presented arguments
on behalf of MWLAP’s regional waste manager. He said the hatchery’s
“low-risk” discharge meets all water-quality standards and
its impact on the environment is negligible since it comes
from an “all-natural process.” “It’s not a pesticide that
comes out of a sealed container. It’s created right there
in the hatcheries. There is no miscommunication and we don’t
have to worry about the environmental impact to fish.”

Doyle said it would be impractical to try to monitor microbes.
He said the manager looked at other fish farms with sablefish
and found no problems with microbes being discharged. “This
is not a case of failure to look at an issue, but a case of
looking at an issue and deciding it doesn’t need any further
consideration.” He said the hatchery is also not a problem
for above-ground creatures. “We’re not talking about a very
intrusive development here. On a whole, we would submit that,
given the studies the manager did, all procedures and policies
were followed and the decision should stand.”

On behalf of Sablefin Hatcheries, Rory Lambert addressed
some of these issues. He said the CSA’s claim was made so
that commercial fishermen could “protect their monopoly and
stifle competition.” He also said residents “can’t see, hear,
smell or taste the hatchery.”

“There is no harm that the hatchery site creates. There
is no evidence that the discharge affects the receiving environment
negatively at all.” After hearing the arguments from all sides,
the board members said they could not promise a date or time
for results, but would try to make their decision as “expeditiously
as possible.”